Capitol murder

Chapter Thirty-eight

Dana entered the elegant reception area of Bobby Schatz’s law office at 9:00 on the dot. Everything from the original oils on the wall to the expensive Persian carpet and fine furniture told potential clients that they better be able to afford a six-figure retainer if they wanted Schatz to represent them.

The receptionist was stunning in an understated way that was more Vogue than Penthouse. She flashed a perfect smile as Dana approached her desk.

“Good morning, Miss Cutler,” she said before Dana could introduce herself. “My name is Cassie. If you’ll come with me, I’ll take you to see Mr. Schatz. He’s expecting you.”

Dana followed Cassie down a narrow hall past the open doors of offices occupied by earnest young men and women Dana assumed were Schatz’s associates. Dana turned down an offer of tea or coffee before Cassie ushered her into her boss’s corner office. As expected, there was a wall of fame displaying headlines from the attorney’s most famous cases, as well as framed awards and pictures of Schatz with movie actors, television personalities, presidents, and lesser but well-known politicians. The windows behind Schatz presented a view of the Capitol dome at one end of the Mall and the White House at the other.

“Sit. We’ve got a busy morning ahead of us and only a little time for me to brief you,” Schatz said. Dana liked the fact that there was no small talk. “In one half hour, you and I are going to walk over to the Department of Justice to have the pleasure of having our balls busted by Deputy Assistant Attorney General Terry Crawford, who is heading up the prosecution of our client. I will hand him motions for discovery, and he will laugh at us and treat us like shit, while making no effort to disguise the pure joy he gets out of trampling on the constitutional and statutory rights of those unfortunate enough to find themselves in the federal criminal injustice system.”

“It sounds like you’ve dealt with Crawford before.”

“Many times, unfortunately. Terry is a complete asshole, but you should never underestimate him. He is also very smart and very, very cunning. The only saving grace of having him as an opponent is that he is so driven to screw all defense attorneys that he occasionally makes mistakes.”

“If you know we’re not going to accomplish anything, why do you want me along?”

“Do you have a good memory, Dana?”

“It’s decent.”

“Good, because your job will be to observe. While we are with Terry, or any of his cronies, let me do the talking. You do the listening. It’s not out of the realm of possibility that Terry will do something as a result of his zeal that may, in the future, lead to a motion charging him with prosecutorial misconduct. If I file such a motion, I’ll need witnesses.”

“You got it. So when do I get to interview our client?”

“That’s not going to happen.”

Dana frowned. “Some of the best leads I’ve gotten have come from the defendant.”

“I’m sure that’s true, but Ron is off-limits to you.”

“And why is that?”

“Ron Tolliver does not trust anyone. I’ve tried to get him to talk to me about the case, and he refuses.”

“Why don’t you let me give it a shot?”

“Maybe later, but I’m trying to build rapport with him. I also want him to see me as his only point of contact with the world outside his prison. And don’t worry; you’ll have plenty of tasks that will occupy your time.”

Schatz glanced at his diamond-studded gold Rolex. “It’s time to enter the dragon’s den, Cutler. Put on your armor and follow me.”

“S triker, grab a pad and pen and come to my office,” Terrence Crawford barked over the intercom.

Ginny had been arranging thousands of pages of investigative reports into neat piles before punching holes in them so they would fit into a three-ring binder. She had been at this task for three days and was so relieved to escape from it that she was actually grateful to Crawford, who had been treating her like a secretary when he wasn’t ignoring her.

Ginny started to ask Crawford what he wanted her to do, but the intercom went dead. Ginny sighed and pulled a yellow legal pad out of the bottom drawer of her desk. When she reached Crawford’s office, he was reading a brief.

“Sit,” he said, pointing at a chair in a corner of the room without looking up.

Ginny waited for Crawford to explain why he had summoned her. When five minutes passed, Ginny had had enough.

“What is it you want me to do, Mr. Crawford?”

The deputy AG looked at Ginny as if he hadn’t realized she was in the room. Then he directed a malicious smile at her.

“In five minutes, Bobby Schatz is going to come in here and demand all sorts of things, which I am not going to give him. When he comes to grips with the fact that I’m not going to budge, Schatz is going to run to court and accuse me of everything from pederasty to rape. As with any accused, I will fare better in court if I can produce a witness who can testify that I did none of the acts Schatz will dream up.”

Ginny was about to reply when Crawford’s intercom buzzed and his secretary announced the arrival of Schatz and his investigator. Crawford told her to send them in. A moment later, the door swung open and the secretary stood aside to admit Bobby Schatz. A second later, Dana Cutler followed him into the office. Crawford was looking at Schatz, or he would have seen Ginny’s jaw drop. Dana’s eyes locked in on her friend, but her expression gave away none of the surprise she felt.

“Hey, Bobby, come on in,” Crawford said as he walked around his desk and shook hands.

“Thanks, Terry. I’d like you to meet my investigator, Dana Cutler.”

“A pleasure.”

Crawford did not introduce Ginny, but he did motion Schatz and Dana toward a comfortable couch that stood against the wall under a framed copy of the Constitution.

“So, Bobby, what can I do for you?” Crawford asked as soon as he’d retaken his seat.

“I’m interested in discovery, Terry. For starters, I’d appreciate a look at the affidavit you used to get the warrant to search my client’s house.”

“I’m sorry, I can’t help you there.”

“Why not? I’m entitled to see it, and I’ll need to read it if I’m going to challenge the search.”

“My problem is that I can neither confirm nor deny the existence of such warrants.”

“You’re joking!”

“The Foreign Intelligence Surveillance Act is no joke, Bobby. If a search warrant affidavit for Tolliver’s house was obtained from the FISA court, it would be classified, and I wouldn’t be able to even acknowledge its existence.”

“If you’re going to use evidence from the search you conducted using a FISA warrant, you have to tell me.”

Crawford shrugged. “It’s early days, Bobby. I have no idea what evidence I’m going to use.”

“Stop screwing around. You know a Federal District Court judge is going to tell you to give me the affidavit. We’re talking about the Fourth Amendment here.”

“Maybe a judge will agree with you. File a motion and we’ll hash this out in court. But I seem to remember hearing that there isn’t a single case where a FISA affidavit has been disclosed to a defense attorney.” Crawford grinned. “Maybe you’ll set a precedent. What else would you like?”

“I’d like to see the statements made by the four men who were arrested at FedEx Field.”

“I’m not at liberty to confirm or deny that such men exist.”

“Terry, pictures of the arrest have been on YouTube, Facebook, CNN, and every media outlet in America and abroad.”

“Then serve a motion for discovery on YouTube.”

“Cute, but you know this is bullshit,” Schatz said.

“Hey, I don’t make the rules. Call your congressman and get him to repeal FISA. Me, I’m just an employee of the federal government, and my boss tells me I have to follow the law, which does not allow me to confirm or deny the existence of these so-called arrestees.”

“Can you give me the names of their attorneys?” Schatz asked.

“I’m not at liberty to discuss that.”

“This isn’t a game, Terry. My client is facing serious jail time.”

Crawford sat up and leaned forward. His face was tight and his body language signaled that he had shifted from taunting Schatz to real anger.

“We lost three thousand people on 9/11. There were over ninety thousand people in FedEx Field on Sunday, and your client wanted to kill them all, so I won’t be too upset if he has to serve serious jail time.”

“You’re assuming he had some part in the plot.”

“Oh, he did.”

“You haven’t told me one thing that leads me to believe he was involved with the suicide bombers.”

Crawford got hold of his emotions and leaned back in his chair. “You’ll get discovery at the appropriate time and not a second before. If you don’t like my position, file a motion.”

Schatz looked as though he was about to say something else, but he changed his mind and stood up.

“Thanks for taking the time to see us,” he said.

“Sorry I couldn’t be more help,” Crawford lied.

Seconds after the door closed behind Schatz and Dana, Crawford broke into a huge grin.

“I hope you remember what you just saw, Miss Striker, because that is the way to kick ass and take names in the doing-justice business.”

Ginny nodded and kept her opinion of what she had just seen to herself. Everything Crawford had done went against her basic sense of fair play. She knew that Crawford had complied with the law, but the end result was that Schatz would have no information he could use to defend his client. Ginny had no sympathy for terrorists, but a court would have to decide whether Tolliver was a terrorist. What if he was innocent but he couldn’t defend himself because his lawyer had no information about his case?

Ginny was also upset by Crawford’s attitude. A man’s life might literally be at stake. Crawford was treating the case as if it concerned only him and Bobby Schatz, but the case really revolved around the ability of the government to prove Tolliver’s guilt beyond a reasonable doubt. Ginny was appalled by laws that hid evidence and begged for an unjust result and by a prosecutor who treated a matter this serious as a game.

“C an he do that?” Dana asked when they were out of the building and headed back to Schatz’s office.

“Oh, yeah. The federal rules are barbaric. Most prosecutors don’t follow them to the letter, but under them we aren’t entitled to see the statements of a witness until after he testifies, which means you probably aren’t going to have any time to investigate before I cross.

“Then there’s the Federal Intelligence Surveillance Act. The government attorneys go to the FISA court, which is made up of federal judges. Their proceedings are secret, and it’s almost impossible for a defendant to find out the basis for the search or even that a search occurred unless they decide to use evidence they got using the warrant. And even then, there’s a declassification process that can prevent a defendant from ever knowing the real basis for the warrant.

“What’s worse, the government is allowed to conduct searches and wiretaps under FISA without satisfying the normal Fourth Amendment requirement of showing probable cause that a crime has been committed when it’s trying to get a warrant.

“On top of that you have CIPA, the Classified Information Procedures Act, which sets out procedures when a defendant wants discovery of evidence that’s classified. The defendant can’t get classified evidence unless a judge finds that it’s relevant, and the judge makes that finding in secret. If the government objects after a judge finds the evidence is relevant, the court enters a nondisclosure order and tries to figure out an appropriate sanction for the government’s failure to disclose the evidence it’s decided is relevant to defending the case. And even when there is no nondisclosure order, the defense attorney can only see the evidence if he has a security clearance, and the defense attorney is usually prohibited from showing the evidence to the defendant. If the judge decides that the defendant can see the evidence, he provides it in a sanitized form like a summary or a redacted document.”

“What about the government’s obligation to give the defense evidence in its possession that can clear him?” Dana asked.

“In the Moussaoui case, the defense wanted to interview terrorists who were detained in U.S. custody outside the country to develop witnesses who would testify that Moussaoui’s involvement with al-Qaeda was limited. The court wouldn’t let the defense interview the potential witnesses. The best they got were summaries of intelligence reports they would have been allowed to read to the jury if the case had gone to trial.

“The whole thing stinks to high heaven, but our client is caught up in post-9/11 hysteria, and that gives a guy like Crawford an opportunity to trample on his rights that he’d never have if Tolliver were charged with bank robbery.”

“What are you going to do?” Dana asked.

Schatz shrugged. “I’ll scream and holler and file motions and hope that Crawford gets overconfident and screws up.”